2013 (4) TMI 400 - AT - Service Tax

Non depositing of service tax to the Government though collected - chargeable to an offence liable for prosecution under section 89 of the Finance Act, 1994 - whether this appeal is maintainable or not before this Tribunal? - whether the impugned order is passed under Section 73 of the Finance Act, 1994 or not? - Held that - In the impugned order there is no dispute about the confirmation of service tax demand. The only dispute is regarding the recovery proceedings of the amount demanded by the Commissioner and the grievance of the appellant only is that he has not considered their applications for payment in installments due to financial hardships. The appellant s prayer to recover the proceedings in installments has been turned down by the adjudicating authority. Thus the impugned order has not passed under Section 73 ibid. Therefore, the appeal is not maintainable before this Tribunal. The appellant is at liberty to recourse their action before the learned Commissioner for appropriate action.

Summary

Issues:
1. Maintainability of the appeal before the Tribunal.
2. Interpretation of Sections 73 and 87 of the Finance Act, 1994.
3. Consideration of application for payment in installments.
4. Comparison with relevant legal precedents.

Issue 1: Maintainability of the appeal before the Tribunal:
The Revenue objected to the appeal's maintainability, citing that the impugned order was under Section 87 of the Finance Act, 1994, making it non-appealable before the Tribunal. The appellant argued that the order could only be passed under Section 73 of the Act, making the appeal maintainable. The Tribunal analyzed the impugned order and concluded that it was not passed under Section 73, rendering the appeal not maintainable before the Tribunal.

Issue 2: Interpretation of Sections 73 and 87 of the Finance Act, 1994:
Section 86 of the Finance Act, 1994 allows appeals against orders under Section 73 or 83A. The Tribunal noted that the impugned order did not fall under Section 83A, leading to the assessment of whether it was passed under Section 73. Section 73 pertains to cases where service tax has not been levied, paid, short-levied, short-paid, or erroneously refunded. The Tribunal found that the impugned order confirmed the service tax demand without dispute, focusing only on recovery proceedings and the denial of installment payment requests, indicating it was not under Section 73.

Issue 3: Consideration of application for payment in installments:
The appellant had requested to pay the outstanding service tax in installments due to financial constraints, citing a circular empowering the Commissioner to allow such facilities. The Tribunal observed that the impugned order did not address the issue of installment payments, leading to the rejection of the appellant's plea. The appellant's argument for non-discrimination in granting installment facilities based on legal precedents was considered but not deemed applicable in this case.

Issue 4: Comparison with relevant legal precedents:
The appellant referenced legal precedents to support their arguments, including decisions from the High Court and the Supreme Court. However, the Tribunal's decision was based on the specific circumstances of the case and the interpretation of relevant sections of the Finance Act, 1994. The Tribunal disposed of the appeal and stay application, advising the appellant to seek appropriate action before the Commissioner.

This detailed analysis of the judgment addresses the issues of maintainability, statutory interpretation, consideration of installment payments, and comparison with legal precedents, providing a comprehensive overview of the Tribunal's decision.